{"id":850,"date":"2009-12-30T17:19:26","date_gmt":"2009-12-30T11:49:26","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=850"},"modified":"2009-12-30T17:19:56","modified_gmt":"2009-12-30T11:49:56","slug":"07-2007","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/07-2007\/","title":{"rendered":"NO MAINTENANCE TO CHILD IF CHILD REFUSES TO STAY"},"content":{"rendered":"

Kolkata High Court (Appellete Side)<\/strong>
\nSmt. Mousumi Banerjee vs Sri Bidyut Kumar Banerjee on 11 September, 2009 <\/p>\n

Form No. J(2)<\/p>\n

IN THE HIGH COURT AT CALCUTTA<\/p>\n

Appellate\/Revisional\/Civil Jurisdiction<\/p>\n

Present:The Hon’ble Mr. Justice Bhaskar Bhattacharya
\nAnd
\nThe Hon’ble Mr. Justice Prasenjit Mandal<\/p>\n

F.A. 07 of 2007<\/p>\n

Smt. Mousumi Banerjee
\nVersus
\nSri Bidyut Kumar Banerjee<\/p>\n

For the Appellant-Wife: Mr. Probal Mukherjee, Mr. Soma Priya Chowdhury.<\/p>\n

For the Respondent-Husband: Mr. Gopal Ghosh, Mr. Om Narayan Rai.<\/p>\n

Heard on: 20.08.09. & 27.08.09<\/p>\n

Judgment on: 11th September, 2009.<\/p>\n

Bhaskar Bhattacharya, J.:<\/p>\n

This appeal is at the instance of a wife in a suit for divorce on the ground of cruelty and is directed against the judgment and decree dated 16th May, 2005 passed by the Additional District Judge, Third Court, Barassat in Matrimonial Suit No.17 of 2002 by which the learned Trial Judge granted the decree for divorce.<\/p>\n

Being dissatisfied, the wife has come up with the present first appeal.
\nThe husband filed a suit being Matrimonial Suit No.1294 of 2001 in the Court of the learned District Judge, Barasat for divorce on the ground of cruelty. The said suit was subsequently transferred to the Court of the learned Additional District Judge, Third Court, Barasat and was renumbered as Matrimonial Suit No.17 of 2002.<\/p>\n

The case made out by the husband may be summed up thus: (a) After the
\nmarriage of the parties, they started staying together at the house of the
\nhusband at 12\/1, Mahajati Nagar, Birati and immediately after the marriage, the
\ntrouble started in the family of the husband at the instigation of the mother
\nof the wife who used to visit the house of the husband quite often. On her
\nadvice, the wife stated misbehaving with the husband and his parents and the
\nmain object of the mother of the wife was to separate the husband from his old
\nparents or to make him a domesticated son-in-law in the house of the wife at
\nSalt Lake. (b) In the meantime, a child was born on 26th November, 1994 but
\nthe wife at the instigation of her mother deprived the husband and his parents
\nfrom the love and affection of the child. The wife left the matrimonial home
\nwith her child without informing the parent of the husband and continued to
\nstay at Salt Lake. After long persuasion and through the intervention of the
\nMahila Samity, although the wife returned to her matrimonial home, when the
\nparents of the husband approached the child, the wife reacted violently and she
\ndenied the access of the child to the parents of the husband and again left the
\nmatrimonial home on 19th April, 1996 without informing the husband and his
\nparents and then came back on 3rd May, 1996. Thereafter, the wife again left
\nthe matrimonial home on 15th August, 1996 without any information and came back
\nafter a short span and finally on 14th October, 1996 she left without informing
\nanybody just leaving a sheet of paper indicating her departure. The husband
\napproached the respondent at her residence at Salt Lake for returning to her
\nmatrimonial home which she flatly refused. As a result, the husband filed a
\nproceeding for restitution of conjugal right under Section 9 of the Hindu
\nMarriage Act. However, the said petition was ultimately withdrawn by the
\nhusband. The wife, however, served a notice to the employer of the husband
\nmaking baseless allegation that amount of alimony was due to her under the
\norder of the Court and she took step for attachment of the salary. She also by
\ngoing to the office of the husband abused him in the presence of his colleagues
\nthereby affecting his social status and dignity in the esteem of his
\ncolleagues. Ultimately, the wife on 10th August, 2001 again came back to the
\nmatrimonial home being armed with an order under Section 144 of the Cr.P.C.
\nwith the help of police by occupying the entire ground floor consisting five
\nrooms by denying access to the husband and his parents in the ground floor. The
\nrespondent also used to threat the husband of initiating proceeding under
\nSection 498A of the Indian Penal Code; as a result, the husband with his parents
\nhad left the place and started living in a rented house.<\/p>\n

The suit was contested by the wife by filing written statement denying the
\nmaterial allegation made in the petition for divorce and according to her, the
\nmother of the husband subjected the wife to cruelty and also manhandled her
\nduring her stay in the matrimonial home. According to her, she was abused in
\nfilthy language by the father of the husband. It was denied that she had
\nvoluntarily abandoned her matrimonial home on 14th October, 1996. She expressed
\nher desire to stay in her matrimonial home with the male child. As indicated
\nearlier, the learned Trial Judge on the basis of evidence on record came to the
\nconclusion that the husband has proved cruelty on the part of the wife and
\nconsequently, granted a decree for divorce. Being dissatisfied, the wife has
\ncome up with the present first appeal. After hearing the learned counsel for
\nthe parties and after going through the materials on record, we find that it
\nhas been well established from the Exbt.3, the handwritten note of the wife,
\nthat she had left the house without disclosing the reason. The learned Trial
\nJudge, as it appears from the judgment impugned, rightly recorded that the
\nmother of the wife made deliberate false statement on oath before the Court at
\nthe time of deposition. She stated that she was very much disappointed in the
\nfamily of the applicant. She openly expressed that her daughter had no duty to
\ntake care of the old parents. The wife in her evidence stated that she did not
\nlike her in-laws and wanted her husband separately. The learned Trial Judge has
\nfurther found that in spite of specific direction for production of the child
\nin the Court, the wife did not give access of the son to the husband. The
\nlearned Trial Judge has further found that a false Money Execution Case No.64
\nof 2000 was filed by the wife for issue of warrant of arrest against the
\nhusband and the same was issued by the Judicial Magistrate but the learned
\nDistrict Judge, Barasat in Criminal Revision Case No.438 of 2001 recalled said
\nwarrant of arrest with a finding that there was no such due. It further appears
\nthat after leaving the house she came back with police and occupied the entire
\nground floor consisting of five rooms and threatened the husband with
\ninitiation of proceeding under Section 498A of the Indian Penal Code, as a
\nresult, the husband was compelled to take shelter in a rented house leaving his
\nown house.<\/p>\n

From the aforesaid material it is clear that the act of the wife
\namounted to cruelty within the meaning of Section 13(1) (i)(a) of the Hindu
\nMarriage Act and we find no reason to take different view from the one taken by
\nthe learned Trial Judge.<\/p>\n

At the time of hearing of this appeal, the husband produced before us his
\nmonthly salary certificate which shows that his monthly income is Rs.27,000\/-
\nand odd and after deduction of income-tax and other necessary deduction we can
\nsafely treat his monthly income to be Rs.25,000\/-. In such circumstances, we are
\nof the view that the wife should be entitled to get a onetime permanent alimony
\nof Rs.6 lakh from the husband in full satisfaction of the claim for future
\nalimony.<\/p>\n

The only son of the parties is living with the wife and is a student of class
\nIX. After taking into consideration the expenditure of his studies and other
\nmaintenance, we, for the time being, direct the husband to pay a sum of
\nRs.5,000\/- for the maintenance of the son on condition that the son will stay
\nwith the husband for a day in a week. The husband should pick up the son from
\nhis wife’s house on every Saturday evening and return the child in the afternoon
\nof Sunday. He will go on sending the money by account payee cheque in the joint
\naccount of the mother with the son. If the son refuses to comply with the
\ndirection of staying with his father for a day in a week, he will not be
\nentitled to get the maintenance ordered by us by this order.<\/p>\n

We, therefore, affirm the decree for divorce on the ground of cruelty and in
\naddition, grant a decree for permanent alimony for the wife and also for the
\nmaintenance of the only child of the parties as indicated above. The appeal
\nis, thus, disposed of with the aforesaid observation. In the facts and
\ncircumstances, there will be, however, no order as to costs.<\/p>\n

(Bhaskar Bhattacharya, J.)<\/p>\n

I agree.<\/p>\n

(Prasenjit Mandal, J.)<\/p>\n","protected":false},"excerpt":{"rendered":"

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